WILL TRUMP ATTEMPT TO STRIKE DOWN 6+ YEAR H-1Bs ?

In what would be a direct attack against Indian H-1B workers, McClatchy reports that the Trump administration is considering an Executive Order or Memorandum that would eliminate the ability of H-1B workers with long-pending green card cases to extend their H-1B status beyond 6 years. For the reasons outlined in this blog, MU Law believes that while the Trump Administration may attempt this change in interpretation, they would be unsuccessful once challenged in court.

Background

In the 1990s H-1B status was limited to 6 years. After 6 years the H-1B worker had to exit the US, even if the H-1B worker's green card application was being delayed for reasons outside of their control, i.e. retrogression or processing delayed at INS (the predecessor to the USCIS). Congress recognized this problem and solved it with the American Competitiveness in the 21st Century Act (AC21).

AC21 includes two provisions that allow H-1B extensions beyond 6 years. These provisions, Sections 104 and 106, are only available to H-1B workers who have started the green card process. The sole purpose of these two provisions is to allow H-1B workers to extend their H-1B beyond 6 years.

Section 104 says that the Attorney General (now Secretary of the Department of Homeland Security) “may” extend an H-1B worker’s status beyond 6 years if the H-1B worker is the Beneficiary of an I-140 petition. The USCIS can approve these extensions in increments of no more than 3 years.

The other important provision, Section 106, says that the USCIS “shall” issue one-year H-1B extensions to H-1B workers who are either:

(1) the Beneficiary of a PERM application that was filed more than 1 year earlier; or

(2) the Beneficiary of an I-140 petition that was filed more than 1 year earlier.

Again, the entire purpose of Sections 104 and 106 is to allow H-1B workers to extend their H-1B beyond 6 years.

Current Regulations

In January 2017, the USCIS released regulations further clarifying the applicability of Section 106. These regulations clearly state that there are only four ways that the USCIS may not extend a 6+ year H-1B. None of the four exception criteria will apply to any H-1B holder with an approved I-140.

(2) H-1B [extensions beyond 6 years] may be granted in up to 1-year increments until either the approved permanent labor certification expires or a final decision has been made to:

(i) Deny the application for permanent labor certification, or, if approved, to revoke or invalidate such approval;

The McClatchy article and several other blogs and news stories point to the “may” language in Section 104. Their interpretation is that the “may” language gives the DHS Secretary unqualified discretion to deny 6+ year H-1Bs.

While MU Law believes that this is a wrong interpretation of Section 104, and we will explain why in a future blog post, it is irrelevant because Section 106 provides no such discretion to the DHS Secretary.

Some have mistakenly interpreted AC21. The mistaken interpretation says that Section 106 does not apply if H-1B workers have an approved I-140. This interpretation is wrong. There is no qualifying clause that compels USCIS to only adjudicate green card petitions under Section 104.

Some have pointed to the "surplusage canon" for the authority that Section 104 supersedes Section 106 when an H-1B worker has an approved I-140. The surplusage canon is a doctrine of statutory interpretation that says that if one clause in a state makes the other redundant, courts should use a reading to eliminate the redundancy.

This interpretation is wrong for several reasons, but the primary one is that an interpretation where Section 104 supersedes 106, makes Section 106 essential.

In other words, Beneficiaries have two ways to qualify: either Section 104 or Section 106. There is no "surplusage".

Conclusion

MU Law wants to be clear. There is risk here. The Trump Administration has proven to be willing to issue unlawful executive orders. They may attempt to issue an unlawful executive order in this instance.

Having said that, a federal court challenge would almost surely be successful because of the alternative nature of Sections 104 and 106.

Latest news: highly-regarded immigration attorney Greg Siskind has just reported on Twitter that he believes that the Trump administration is only considering changing their interpretation of Section 104. Section 106 appears to be outside the scope of the Trump Administration’s considered review.___________

Comments

H-1B extension based on an approved I-140 under section 104 is only necessary if a labor certification has been pending for less than a year. Once more than a year has elapsed after the Labor Certification is filed, whether approved or not, as long as it is still pending or valid, extension under Section 106 is available and there cannot be any possible argument that the DHS has the discretion under the statute to deny an extension.

Therefore, while extension under Section 104 is of course more convenient, since it can be for up to three years at a time instead of just one year at a time, it is not essential except in cases where the initial six years of H-1B run out before one year has passed after filing the Labor Certification.